STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLSTATE SPECIALTY SERVICES OF ) FLORIDA, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

) CASE NO. 92-4312BID

Respondent, )

)

and )

) BEST MAINTENANCE AND JANITORIAL ) SERVICE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 14, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Andy Kontos, Senior Vice President

Allstate Specialty Services, Inc.

371 West 21st Street Hialeah, Florida 33010

For Respondent: Colleen A. Donahue, Esquire

Department of Health and Rehabilitative Services

District 10 Legal Office Room 513

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

For Intervenor: Stephen G. Murty, Esquire

Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue

Miami, Florida 33131 STATEMENT OF THE ISSUE

Whether Petitioner's bid protest should be upheld.

PRELIMINARY STATEMENT

Respondent published a Request for Proposals (RFP) pertaining to the furnishing of housekeeping services at South Florida State Hospital. Petitioner submitted a bid in response to the RFP. Respondent's evaluation committee determined that Petitioner's bid was non-responsive because it did not comply with a fatal item requirement and disqualified the bid. Petitioner thereafter timely filed this bid protest. The Intervenor in this proceeding is the bidder to whom Respondent intends to award the bid.

At the hearing, Petitioner presented the testimony of Andy Kontos.

Respondent recalled Mr. Kontos and presented the additional testimony of Ritter Von Massenbach. Mr. Kontos is a senior vice president for Petitioner and Mr.

Massenbach is an employee of Petitioner. The parties stipulated into evidence eight joint exhibits, each of which was accepted into evidence.

No transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On April 24, 1992, Respondent issued a Request for Proposals for the provision of housekeeping services at South Florida State Hospital. The responses to the RFP were due June 5, 1992. A bidder's conference was scheduled for May 15, 1992.

   
   

2. On page 21 of the RFP, the bidders are advised, in pertinent part, as follows:

   
   

   ... each proposal must contain a line item budget with detailed narrative justification for each expenditure category. A separate budget must be completed for each contract period ...

   
   

3. The statement contained on page 21 of the RFP was repeated on page 31 of the RFP.

   
   

4. Pages 70-72 of the RFP contained the RFP Rating Sheet to be used by Respondent's evaluation committee. Bidders are clearly notified that these criteria are considered to be "fatal items" and are advised:

   
   

   The following criteria must be met for the proposal to be considered for evaluation, failure to receive a "Yes" response for any [item] will result in automatic rejection of the proposal. (Emphasis in the original.)

   
   

5. Listed as "fatal item" numbered 8 on page 71 of the RFP is the following:

   
   

   Does the proposal contain completed charts (page 11 through 14) and line item budgets for each contract period?

6. Petitioner timely submitted a bid in response to the RFP. Petitioner had bid on prior contracts that Respondent had procured through the competitive bid process and was, at the time of the issuance of the RFP, the contract provider of the housekeeping services at South Florida State Hospital.

   
   

7. Petitioner contends that its response to another item should be construed as an appropriate response to the requirements pertaining to line item budgets. This contention is without factual basis and is rejected. The bid submitted by Petitioner in response to the RFP did not contain a line item budget. Respondent's evaluation committee disqualified Petitioner's bid because it did not contain a line item budget as required by the RFP.

   
   

8. On May 15, 1992, Respondent held a bidder's conference at which bidders were given the opportunity to ask questions about the bid requirements and specifications prior to the submission of bids. Petitioner was represented at the bidder's conference by Ritter Von Massenbach, who took notes at the meeting and who paid close attention to the discussion pertaining to fatal items. The minutes of the bidder's conference reflect that the bidders were told that a bid that failed to comply with a fatal item requirement would be disqualified.

   There were questions and answers as to how the bidders could meet the bid requirements pertaining to line item budgets and a specific discussion, with examples, as to what information Respondent expected to be contained in a line item budget. Mr. Massenbach was not instructed to ask about the line item budget requirement, nor did he do so. Mr. Massenbach reported to Andy Kontos, Petitioner's senior vice president, by telephone following the bidder's conference, but there was no discussion as to the line item budget requirement. Thereafter, Mr. Kontos prepared the bid that was submitted by Petitioner.

   
   

9. An addendum to the bid along with the minutes of the Bidder's Conference was mailed to all bidders, including to Petitioner at the business address it had given Respondent, by certified mail, return receipt requested. This certified mailing was unclaimed by Petitioner and subsequently returned to Respondent on July 14, 1992, as being "unclaimed." The mailing envelope reflects that the package was postmarked on May 29, 1992, and that attempts at delivery were made on June 1, 1992, June 8, 1992, and June 16, 1992. Bids in response to the RFP were due June 5, 1992.

   
   

10. The addendum did not pertain to or change in any material manner the fatal item requirement for a line item budget. Petitioner's contention that specific information as to what Respondent intended by the term "line item budget" was unclear and should have been included in an addendum is unsupported by the evidence and is, consequently, rejected.

    
    

11. There was no evidence that Respondent was using the subject fatal item requirement to discriminate against or in favor of any proposer.

    
    

12. Petitioner failed to establish that its failure to comply with the subject fatal item requirement was attributable to Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

14. The contractual services required by Respondent must be procured by the competitive bid process. See, Section 287.057(1), Florida Statutes. Section 287.012(13), Florida Statutes, provides the following definition of the term "responsive bidder":

    
    

    (13) "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.

    
    

15. Respondent correctly determined that Petitioner should not be considered to be a "responsive bidder" or a "responsive offeror" within the meaning of the foregoing definition.

    
    

16. Petitioner has failed to establish in this proceeding that Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting Petitioner's bid. See, D.O.T. v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protest

filed by Petitioner.

DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4312BID

The only post-hearing submittal filed by Petitioner is in the form of a letter addressed to the Hearing Officer. That letter contains argument, but not proposed findings of fact.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, and 8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 4 pertaining to the reasons Mr. Massenbach paid attention to the fatal items discussion are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 27, 28, 29, 30, 32, 33, and 34 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 10, 18, 25, 26, 31, 35, 36, 37, 38, 40, and 42 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 20 are rejected as being unsubstantiated by the evidence. There was no evidence as to what was "made clear" to each bidder.

4. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached since there is no contention on the part of Petitioner that it was prevented from making inquiry.

5. The proposed findings of fact in paragraphs 39 and 41 are rejected as being argument.

COPIES FURNISHED:

Rey J. Nieto, President Andy Kontos, Vice President

Allstate Specialty Services, Inc.

371 West 21st Street Hialeah, Florida 33010

Colleen A. Donahue, Esquire Department of Health and

Rehabilitative Services District 10 Legal Office Room 513

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A.

777 Brickell Avenue

Miami, Florida 33131

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-004312BID

Orders for Case No: 92-004312BID